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Mortgages

WA

This publication guides practitioners in Western Australia through the preparation of loan agreements, mortgages, and guarantees.

1 Matter Plan

Overview

The commentary covers the drafting and execution of mortgages, amendments, variations, and assignment deeds, as well as completion, registration, discharge, and default, whether acting for the mortgagor or the mortgagee.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Precedents in this publication include:

  • Library of loan documents, including:
    • Mortgage-linked loan agreement;
    • Standard terms document – Registered memorandum;
    • No-security loan agreement;
    • Acknowledgements of debt;
    • Assignment, variation and priority;
    • guarantee;
    • minutes and declaration for a company mortgagor;
  • Letters and notices for default of the mortgagor.
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1 Matter Plan Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Mortgages (WA)
  • Item icon A Brief Explanation of the Transition to E-Conveyancing
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Costs Answers
    • Folder icon Papers and articles - Conveyancing and property
      • Item icon Plain language – A paper by the Hon. Michael Kirby AC CMG
      • Item icon Adjustment for cladding agreements
      • Item icon Adjustment of rates
      • Item icon Adjustment of rent
      • Item icon Adjustments
      • Item icon Adjustments and land tax in 2024
      • Item icon Agreement to lease
      • Item icon Avoiding off the plan - Quality defects
      • Item icon Avoiding off the plan - Statutory rights
      • Item icon Avoiding off the plan contracts - A sequel
      • Item icon Bits and pieces
      • Item icon Breach of contract - Penalty interest
      • Item icon Breach of contract – Reasonably foreseeable loss
      • Item icon Breach of section 32
      • Item icon Caveats (Vic)
      • Item icon Caveats - Forcible removal 1
      • Item icon Caveats - Forcible removal 2
      • Item icon Caveats - Insufficient proceeds from settlement
      • Item icon Caveats - Tenant’s caveats and the sale or mortgaging of freehold property
      • Item icon Caveats - Use them!
      • Item icon Costs and caveats
      • Item icon Certificates of title in electronic conveyancing
      • Item icon Clayton's settlement
      • Item icon Compensation for loss
      • Item icon Contamination
      • Item icon Contract – Australian Consumer Law – Impact on residential conveyancing
      • Item icon Contract - Avoiding off the plan contracts 1
      • Item icon Contract - Avoiding off the plan contracts 2
      • Item icon Contract - Changing the contract by special condition
      • Item icon Contract - Electronic conveyancing special condition
      • Item icon Contract - Electronic signatures
      • Item icon Contract - Entire contract
      • Item icon Contract - Guarantee
      • Item icon Contract - Is there a contract?
      • Item icon Contract - Misleading contracts
      • Item icon Contract - New contract
      • Item icon Contract - New contract - Contract of sale tweaked
      • Item icon Contract - New contract - Happy anniversary
      • Item icon Contract - New special conditions for contract of sale
      • Item icon Contract - Nomination
      • Item icon Contract - Terms contracts 1
      • Item icon Contract - Terms contracts 2
      • Item icon Contract - Terms contracts 3
      • Item icon Contract - Trust transactions
      • Item icon Cooling off
      • Item icon Co-owners - Joint tenancy or tenancy in common
      • Item icon Co-owners and easements – Two topics
      • Item icon Covenant - Removal of covenants 1
      • Item icon Covenant - Removal of covenants 2
      • Item icon Defects - Essential safety measures - Part 1
      • Item icon Defects - Essential safety measures - Part 2
      • Item icon Defects - Occupancy and insurance certificates
      • Item icon Deposit - Deposit release - 2010
      • Item icon Deposit - Deposit release - 2017
      • Item icon Deposit - Deposit release - A solution?
      • Item icon Deposit - Deposit release - Tough decisions?
      • Item icon Deposit - Deposit release - Why take the risk?
      • Item icon Deposit - Forfeiture of deposit
      • Item icon De-regulated Contract of Sale of Land
      • Item icon Deterioration - A matter of degree
      • Item icon Deterioration - General condition 24 has teeth
      • Item icon Deterioration - State of the premises
      • Item icon Disclosure of death
      • Item icon Estate agent - Agent beware
      • Item icon Estate agent’s commission – Money for nothing
      • Item icon Foreign residents capital gains tax withholding
      • Item icon GST - GST and mistake
      • Item icon GST - Margin scheme
      • Item icon GST withholding
      • Item icon Inadvertent disclosure
      • Item icon Inspection - Right to inspect
      • Item icon Land tax - Part 1
      • Item icon Land tax - Part 2
      • Item icon Land transfer duty benefits
      • Item icon Lease - Abandoned goods
      • Item icon Lease - Landlords beware
      • Item icon Lease - Retail lease
      • Item icon Lease - Retail lease - Predominant use
      • Item icon Lease - Retail lease cost
      • Item icon Lost trust deeds
      • Item icon Material facts
      • Item icon Measurements
      • Item icon Mortgage stress
      • Item icon Nomination
      • Item icon Nomination and the Australian Consumer Law
      • Item icon Nomination disputes
      • Item icon Notice of action
      • Item icon Notices - Liability for notices
      • Item icon Off the plan duty concessions
      • Item icon Owner-builder insurance
      • Item icon Owner-builders
      • Item icon Owners corporations
      • Item icon Personal Property Securities Act
      • Item icon Planning certificates - Accuracy
      • Item icon Power of attorney
      • Item icon Priority notice
      • Item icon Property - Rules and undertakings
      • Item icon Rescission - Consequences of rescission 1
      • Item icon Rescission - Consequences of rescission 2
      • Item icon Rescission - Costs on rescission
      • Item icon Retail lease outgoings
      • Item icon Retail premises
      • Item icon Retail repairs
      • Item icon Retail repairs revisited
      • Item icon Sale of land amendments
      • Item icon Scary short-stays
      • Item icon Self managed superannuation funds
      • Item icon Septic situation
      • Item icon Sheriff - Enforcement procedure
      • Item icon Sheriff's sale - Part 1
      • Item icon Sheriff's sale - Part 2
      • Item icon Solicitor - Lawyers selling real estate
      • Item icon Solicitor – Executor’s commission 1 – Horns of a dilemma
      • Item icon Solicitor - Executor's commission 2 - A fiduciary duty
      • Item icon Solicitor – Liability for commercial advice
      • Item icon Stamp duty concessions
      • Item icon Subdivision - Off the plan sales
      • Item icon Subdivision - Off the plan sales - Best endeavours - Part 1
      • Item icon Subdivision - Off the plan sales - Best endeavours - Part 2
      • Item icon Subdivision - Off the plan sales - Materially affects
      • Item icon Subdivision - Off the plan sales - Sunset conditions
      • Item icon Subdivision - Owners corporation certificates
      • Item icon Subdivision - Owners corporation repairs
      • Item icon Subdivision - Owners corporations
      • Item icon Subject to contract
      • Item icon Sunset clause – Vendor ending a contract – Purchaser’s consent or court order required
      • Item icon Time of the essence
      • Item icon To be or not to Airbnb
      • Item icon Trade practices – Fair trading in property transactions
      • Item icon Vendor statement - Aboriginal Heritage Act
      • Item icon Vendor statement - Breach of section 32
      • Item icon Vendor statement - Growth areas infrastructure contribution
      • Item icon Vendor statement - Honest and reasonable
      • Item icon Vendor statement and leases
      • Item icon Vendor statement review
      • Item icon Vendor statements and the Australian Consumer Law
      • Item icon Vendor's duty to co-operate
      • Item icon Wills and estates - Death in the house
    • Item icon Further information
  • Item icon Overview
    Mortgages are a means whereby repayment for a loan can be secured over a real estate asset. A Torrens title mortgage creates by registration a security interest in the property with the mortgagor remaining as the registered proprietor. This is often referred to as a statutory charge and important ...

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Mortgages
    • Item icon To do list - Mortgages
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Verification of identity in electronic conveyancing transactions
    • Item icon Client authorisation
      A client authorisation enables a client to authorise a solicitor or conveyancer to act on their behalf for an electronic transaction. Although the authorisation is similar to a power of attorney, the legislation specifically states that a client authorisation is not a power of attorney. When ...

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    • Folder icon Library of identity and authorisation forms - WA
      • Item icon Verification of identity certificate
      • Item icon Client authorisation
      • Item icon Identifier declaration
      • Item icon Identity agent certification
      • Item icon Australian Embassy/High Commission/Consulate certification form
    • Item icon Letter to Landgate - Incorporating verification of identity statement
    • Item icon Retainer instructions - Mortgages
    • Item icon Conflict of interest check
    • Item icon Initial letter to mortgagor client with costs agreement
    • Item icon Initial letter to mortgagee client with costs agreement and summary of loan terms
    • Item icon Costs agreement - WA
    • Item icon Standard costs disclosure form for clients - Fees under $3000
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Summary of loan terms
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. The mortgage
    • Item icon The National Mortgage Form
      All mortgages and discharges of mortgages must be lodged electronically using the National Mortgage Form. See the Landgate page Eligible documents for paperless conveyancing. The National Mortgage Form is a national initiative to standardise the content and presentation of mortgages lodged for ...

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    • Item icon National Mortgage Form – completed in PEXA
    • Item icon Loan agreements and registered memorandum
      The mortgage must be supported by a loan agreement between the mortgagee and the mortgagor. The guide includes two loan agreements that may be used to record the creation of the loan relationship. The Mortgage Linked Loan Agreement is linked to the mortgage which incorporates the provisions found ...

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    • Item icon Mortgage linked loan agreement
    • Item icon Standard terms document - Registered memorandum N133186
    • Item icon Transfer duty and registration fees
      Duty on mortgages and charges executed on and after 1 July 2008 has been abolished. Registration fees on mortgages and on transfers, discharges and extensions of mortgage continue to apply. Details can be found from the Landgate website at Registration and Search Fees.

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    • Item icon Crown land mortgages
      Much of the state of Western Australia is Crown land. A mortgage over a registered interest, such as a lease or sublease, in Crown land may be registered under the Transfer of Land Act 1893. As with Torrens title land, the mortgage acts as a charge against the land and not a transfer. When ...

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    • Item icon Second mortgages
      A second or subsequent mortgage has the same form as a first mortgage. Any number of mortgages may be granted over a property if the mortgagee is either satisfied that the mortgagor still retains sufficient equity in the property to support another mortgage, or is prepared to take another mortgage ...

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    • Item icon Equitable mortgages
      Under the Torrens system there can be no legal mortgage without its registration. However, once executed by the parties, an equitable mortgage comes into existence pending registration. There are variants of the equitable mortgage but in essence there are two types:

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    • Item icon Collateral mortgages
      A collateral security is one given in addition to the principal security and is independent of, but subordinate to, the principal security. A collateral mortgage, therefore, is a mortgage relating to the same debt as the principal security, often referred to as a primary instrument. The mortgage ...

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    • Item icon National credit code
      The National Credit Code replaced the existing state and territory based consumer credit codes with effect from 1 July 2010. It is found in Schedule 1 to the National Consumer Credit Protection Act 2009. The National Credit Code has a broad effect on mortgages. Section 7 of the National Credit Code ...

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    • Item icon Joint borrowers - Forgery
      If one joint proprietor forges the signature of another joint proprietor, the lender's interest will gain the benefit of indefeasibility upon registration. The question that arises is indefeasible against what? If the documentation establishing the debt was also forged, the innocent party might not ...

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    • Item icon Personalty
      As from 30 January 2012 the PPSA legislation governs the priorities between competing interests. Security interests, formerly known as charges, are registered with the Personal Property Securities Register under the Personal Property Securities Act. Charges registered at ASIC before 30 January 2012 ...

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    • Folder icon Old system
      • Item icon General law mortgage
    • Folder icon If required - Ancillary documents
      • Item icon Business purpose declaration
    • Folder icon If required - No security loan agreement
      • Item icon No security loan agreement
  • Folder icon C. Acting for the mortgagee
    • Item icon Letter to mortgagor's solicitor submitting documents
    • Item icon Acknowledgement of receipt of memorandum
    • Item icon Statutory declaration - blank - WA
    • Item icon Clause - Statutory declaration re mortgages, notices, claims etc
    • Item icon Statutory declaration
    • Item icon Authority to complete documents and satisfy requisitions
    • Item icon Mortgagee's requisitions
  • Folder icon D. Acting for the mortgagor
    • Item icon Letter to mortgagor to attend to sign mortgage
    • Item icon Letter to mortgagee's solicitor returning documents
    • Item icon Letter to discharging mortgagee requesting discharge
    • Item icon Direction to pay
    • Folder icon If required - Company mortgagor
      • Item icon Minutes of meeting of company mortgagor
      • Item icon Statutory declaration - blank - WA
      • Item icon Example content - Statutory declaration that company is solvent
  • Folder icon E. If required - Independent legal advice, priorities, guarantees and caveats
    • Folder icon Independent legal advice
      • Item icon Acknowledgement of legal advice - Borrower
      • Item icon Acknowledgement of legal advice - Guarantor
      • Item icon Consent to same solicitor legal advice - Borrower guarantor
      • Item icon Declaration by borrower
      • Item icon Declaration by third party for borrower
      • Item icon Certificate of independent financial advice
      • Item icon Interpreter's certificate
    • Folder icon Priorities, guarantees and acknowledgements
      • Item icon Variation of priority of mortgages or charges
        Under the Torrens system, registration gives priority. Priority is established on the basis of the time of lodging for registration. In relation to mortgages, the first mortgage registered takes priority over subsequent mortgages: s 53 of the Act. However, parties with an interest in property under ...

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      • Item icon Deed of priority
      • Item icon Deed of guarantee and explanation
      • Item icon Acknowledgement of loan
      • Item icon Acknowledgement of loan secured by mortgage
      • Item icon Acknowledgement of loan secured by caveat
      • Item icon Acknowledgement of debt arising from judgment secured by mortgage
      • Item icon Acknowledgement of loan secured by deposit of title deeds
      • Item icon Additional page
      • Item icon Blank instrument form
      • Item icon Coversheet
    • Folder icon Caveats
      • Item icon Caveats
        A caveat is a warning on the certificate of title that there is a claim lodged against the land. Its function is to preserve and protect the caveator’s rights. It does not itself confer a proprietary interest in the land, but prohibits the registration of a subsequent dealing which might defeat the ...

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      • Item icon Caveat
      • Item icon Withdrawal of caveat
  • Folder icon F. If required - Discharge, transfer, assignment, variation and deceased estates
    • Folder icon Discharge
      • Item icon Discharge of mortgage
        Once the principal or secured sum has been repaid, and any other obligations fulfilled, the mortgagor has the right to have the mortgagee’s interest in the secured property discharged. The approved form, Discharge of Mortgage (D1), must be used for this purpose. It is then lodged for registration ...

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      • Item icon Discharge of mortgage
      • Item icon Discharge of mortgage (part of moneys and some of the mortgagees)
      • Item icon General law discharge of mortgage
      • Item icon Deed of forgiveness of debt
    • Folder icon Transfer
      • Item icon Transfer of mortgage
        Section 82 of the Act contemplates that a mortgage or other encumbrances may be transferred if in the approved form. Timely notice of the transfer should be given to the mortgagor so that payments due under the mortgage are made to the correct person.

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      • Item icon Transfer of mortgage charge or freehold lease - T3
      • Item icon Notice of transfer of mortgage
    • Folder icon Assignment
      • Item icon Notice of assignment of simple debt
      • Item icon Deed of assignment of debt - Concise
      • Item icon Deed of assignment of debt - Extensive
      • Item icon Deed of assignment of general law mortgage
    • Folder icon Variation
      • Item icon Variation by extension of mortgage
        Once a mortgage has been registered it can be varied but only in relation to particular aspects if the mortgage is extended at the same time. Section 105A of the Act allows for an extension and the term must be extended by at least one day. If the extension is of a mortgage payable on demand, a ...

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      • Item icon Deed of variation of mortgage
  • Folder icon G. Default
    • Item icon Default
      Every mortgage contains a power for the mortgagee on the mortgagor's default to sell the mortgaged premises or appoint a receiver. Sale is the usual remedy employed to recover the money owing. The default usually, but not always, relates to a default in payment of the principal sum secured by the ...

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    • Item icon Power of sale
      In the case of a default under an old system mortgage or a mortgage registered under the Transfer of Land Act 1893, the mortgagee is entitled, without going to court, to exercise the power of sale. This power arises in relation to:

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    • Item icon Obtaining possession
      Section 111 of the Transfer of Land Act 1893 gives the mortgagee the power to take possession of the secured property. The mortgagor may vacate the property voluntarily. If not, the mortgagee who wants possession will have to commence action to lawfully obtain it. Whilst it is not necessary to take ...

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    • Item icon Power of foreclosure
      Foreclosure is the process by which the mortgagee seeks to extinguish the equity of redemption and vest the mortgaged property absolutely in the mortgagee. The right to foreclose is a remedy which is a natural incident of both legal and equitable mortgages, including an equitable mortgage created ...

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    • Item icon Standard of mortgagee’s duty in exercising power of sale
      The mortgagee’s duty to the mortgagor is to act in good faith in respect of the mortgagor’s interests. The mortgagee must act without fraud and without wilfully or recklessly sacrificing the mortgagor’s interests. This principle is set out in the High Court’s decision in Pendlebury v Colonial ...

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    • Item icon Accounting for the proceeds of a mortgagee sale
      Once a mortgagee exercises the power of sale and sells the secured property, the proceeds from that sale have to be accounted for. Section 109 sets out the following order of priority for payment of the proceeds of a mortgagee’s sale:

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    • Item icon Farm debt mediation
      A Farm Debt Mediation Scheme WA has been agreed between the Western Australian Farmers Federation and the Australian Banking Association, supported by the WA Department of Agriculture and Food. A committee has been established to assist with a voluntary mediation process to resolve farm mortgage ...

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    • Item icon Notice to pay - Fixed term mortgage
    • Item icon Letter to mortgagor with notice to pay
    • Item icon Notice of demand under section 107 Transfer of Land Act
    • Item icon Letter to mortgagor with section 107 notice of demand
    • Item icon Notice of demand for possession of property
    • Item icon Letter to encumbrancee with less priority advising exercising power of sale
    • Item icon Deed of forgiveness of debt
  • Folder icon H. Settlement and finalising the matter
    • Item icon Letter to mortgagor's solicitor advising ready for settlement
    • Item icon Finalising the matter
      It is not intended here to provide precedents for use in institutional lending or lending by organisations in the business of lending but rather to provide straightforward documentation for those many one-off occasions that money is either borrowed from or lent to clients. Various statutory and ...

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    • Item icon Letter to mortgagor after settlement with summary
    • Item icon Letter to mortgagee after settlement with summary
    • Item icon Summary of loan terms
    • Item icon Example invoice incorporating notification of client's rights - WA
    • Item icon Invoice recital - Mortgage
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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